Citation Nr: 0842982
Decision Date: 12/12/08 Archive Date: 12/17/08
DOCKET NO. 05-18 692 ) DATE
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Received from the
Department of Veterans Affairs Regional Office in Anchorage,
Alaska
THE ISSUES
1. Entitlement to service connection for peripheral
neuropathy of the left lower extremity to include as
secondary to service-connected diabetes mellitus.
2. Entitlement to service connection for peripheral
neuropathy of the right lower extremity to include as
secondary to service-connected diabetes mellitus.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
A. Cryan, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1967 to May 1971.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a January 2004 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Salt Lake City, Utah.
The veteran's case was remanded by the Board for additional
development in December 2007. The case is once again before
the Board.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
The veteran's case was previously remanded for the purpose of
affording the veteran a VA neurological examination to assess
his claims. Unfortunately, a review of the claims file
reveals that a remand is once again necessary.
The veteran was afforded a VA neurological examination in May
2008. The AMC requested the examiner to review the claims
file and determine whether the veteran had peripheral
neuropathy in either lower extremity that was related to his
diabetes mellitus. However, the examiner indicated that the
entire claims file was not provided. Furthermore, the
examiner indicated that the examination was being conducted
for peripheral neuropathy of the bilateral upper extremities
rather than peripheral neuropathy of the lower extremities.
Presumably, the AMC sent the veteran's claim file back for a
medical opinion in July 2008 because the May 2008 examination
did not include a review of the entire claims file. The July
2008 examiner reviewed the claims file; however, the examiner
once again indicated that the medical opinion pertained to
peripheral neuropathy of the bilateral upper extremities
rather than the lower extremities.
The United States Court of Appeals for Veterans Claims
(Court) has held that a remand by the Board confers on the
veteran, as a matter of law, a right to compliance with the
remand instructions, and imposes upon VA a concomitant duty
to ensure compliance with the terms of the remand. Stegall
v. West, 11 Vet. App. 268, 271 (1998). The Court has
indicated, additionally, that if the Board proceeds with
final disposition of an appeal, and the remand orders have
not been complied with, the Board itself errs in failing to
ensure compliance. Id. Given those pronouncements, and the
fact that the development sought by the Board in this case
has not been fully completed, another remand is now required.
38 C.F.R. § 19.9 (2008).
Accordingly, the case is REMANDED for the following action:
1. The claims file should be
returned to the examiner who
prepared the July 2008 medical
opinion and the examiner should be
requested to provide an opinion as
to whether it is at least as likely
as not that peripheral neuropathy of
the right and left lower extremities
has been caused by the veteran's
service-connected diabetes mellitus.
The examiner should also provide an
opinion as to whether the veteran's
peripheral neuropathy of the right
and left lower extremities has been
made worse by his service-connected
diabetes mellitus. The examiner
should specifically address
pertinent medical opinions
previously offered regarding the
etiology of the veteran's lower
extremity complaints. A complete
rationale for any opinions
expressed, as well as a discussion
of the medical principles involved,
should be provided. If the July
2008 examiner is not available,
another VA examination should be
should be accomplished.
The AMC should ensure that the
examination report complies with
this remand and the questions
presented in the AMC's examination
requests. If the report is
insufficient, it should be returned
to the examiner for necessary
corrective action, as appropriate.
2. After undertaking any other
development deemed appropriate, re-
adjudicate the issues on appeal. If
the benefits sought are not granted,
the veteran should be furnished a
supplemental statement of the case
and afforded an opportunity to
respond before the record is
returned to the Board for further
review.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2008).